Civil rights missing in action

Truth and basic freedoms are suffering as the US arms itself with arbitrary powers as it hunts for terrorists in its midst, writes Marian Wilkinson.

Three months after the terrorist attack on the World Trade Centre, on December 18, the FBI hauled a young graduate engineering student from Egypt before a court in Manhattan.

The agency wanted the judge to order Abdallah Higazy to be held in jail without being charged because he was "a material witness" in the investigation of the events that took place on September 11.

The FBI's case was convincing. Higazy had checked into room 5101 of the Hilton, just across from the centre, two weeks before the attack.

The FBI told the judge that hotel security staff had found in his room safe a radio transceiver capable of air-to-ground communication, his passport and a copy of the Koran.

Higazy protested his innocence and claimed he did not own the transceiver.

He asked to be given a lie detector test. Judge Jed Rakoff said the court could not do this although it had no objection to the FBI conducting the test. But given the strength of the FBI evidence, the judge agreed Higazy should be held for 10 days before he was brought before a grand jury.

After he spent nine days in solitary confinement at the Metropolitan Correctional Centre in Manhattan, the FBI took him to an office in the courthouse and hooked him up to a lie detector. His lawyer was told to stay outside.

When FBI agents began telling Higazy the radio transceiver could communicate with the hijackers, the student began hyperventilating and asked for the test to be stopped.

He was unhooked but an FBI agent questioned him for almost five hours without his lawyer.

According to Higazy, the agent also threatened his family back in Egypt.

Finally Higazy broke down and admitted the radio was his.

The next day the FBI brought him back before Judge Rakoff and produced the confession, asking the judge to keep him locked up for another 18 days. Again, on the FBI's convincing evidence, Higazy was put back in solitary confinement.

On January 11, Higazy was charged with lying to the FBI in his original statement in which he had claimed he did not own the transceiver.

Three days later, an American pilot who had been evacuated from the Hilton on September 11, walked up to the hotel lobby and asked if he could retrieve his belongings, including the radio transceiver he had left in his room.

The FBI quietly dropped the charges against Higazy and arranged for his release. He had spent 31 days in solitary confinement.

"It was horrible. Horrible," Higazy told lawyers from America's Human Rights Watch. "I was crying each and every day."

His case is a sobering reminder to authorities in the US and Australia that the balance between individual rights and the state is a delicate one in today's war against terrorism.

Since September 11, both the US and Australian governments have argued that the threat of terrorism justifies winding back accepted civil liberties, including the most basic: protection against secret arrest, protection from arbitrary detention and the right of an accused to timely legal advice.

Judge Rakoff recounted the details of Higazy's case in an extraordinary opinion from the bench released in the US a few weeks ago.

The Hilton's security guard, a former policeman, had repeatedly lied about Higazy's possession of the transceiver. The guard said he knew the transceiver wasn't Higazy's but he lied, "during a time of patriotism".

The FBI denies that its agent lied about Higazy's confession or that the agent threatened his family. But while the Department of Justice has admitted it was "terribly troubled by how this case unfolded", it has so far dragged its heels on the investigation into the agent's conduct.

Civil rights lawyers concede that, for many Americans, the failure to uphold suspects' rights in the face of the attacks of September 11 may seem to be a pretty abstract concern. The stealth and secrecy of al-Qaeda eluded the FBI, the CIA and the police agencies.

Most Americans still largely support the Government and the FBI as they try to pursue the largest criminal investigation in the country's history and prevent any further attacks. But after seven months and more than 1200 arrests, only one man, Zacarias Moussaoui, has been charged with terrorism offences tied to the September 11 attacks and he was picked up a month before the hijackers hit the towers.

Most of those arrested in the post-September 11 dragnet have been Muslim immigrants on temporary visas, some who had lived in America for years or others, like Higazy, on student visas. And because they are not American citizens, there is only marginal interest in their treatment.

"Their lives were turned upside down when their nationality and religion drew the Government's attention, although they were never charged with terrorism," said Cesar Acebes, who has just finished a report on human rights abuses post-September 11 for Human Rights Watch.

"The Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them and run roughshod over the presumption of innocence."

Lawyers and reporters trying to track these arrests have been stymied by a directive from the Attorney-General, John Ashcroft, to the immigration courts not to release the names of those arrested.

The directive outlined new security measures for "special interest cases" that might be linked to terrorism investigations, including closing the court cases to the media and the public.

The Attorney-General's power over terrorism cases was bolstered by a sweeping law rushed through Congress last October, the USA-Patriot Act.

The act made it easier for the Government to detain and deport foreigners suspected of being terrorists; increased powers to hold anyone it had "reasonable grounds to believe" might be a threat to national security; expanded the FBI's wire-tapping powers and allowed authorities to intercept lawyer-client conversations if the Attorney-General had a "reasonable suspicion" the conversation might facilitate a terrorist act.

The FBI and the Justice Department were under intense pressure following the September 11 attacks, the anthrax scares and other claims of terrorist plots using crop dusters, to hunt down al-Qaeda operatives believed to be still active in America. Using its new powers and spurred on by public pressure, the FBI has come down hard on Arab-American communities.

"The laws that have been passed since September 11 - we are only beginning to see the repercussions of them," says Ashraf Nubani, a lawyer acting on behalf of many Muslim immigrants.

"It's going to get worse before it gets better. A lot of precedents are going to be set in the coming years."

Like most Americans, Nubani says he understands the public mentality and fear driving the crackdown. But he points out that, for most Americans, their experience of it is standing in line a little longer to get on a flight. For many Muslims, it has meant arbitrary detention.

Muslim women have appeared at rallies holding up pictures of husbands detained in the post-September 11 sweep. FBI agents have gone undercover into mosques, raided Muslim charities and scoured libraries for suspect reading habits. About 8000 mainly Middle Eastern men have been called in for "voluntary" interviews with the Justice Department, leading to cries of "racial profiling".

The FBI and the Justice Department argue that valuable intelligence and criminal leads have come out of the 1200 arrests as well as some criminal charges, even if they are not related to September 11.

However, some Americans are increasingly voicing concerns that, in the fight against terrorism, the very freedoms they uphold are being seriously undermined.

The secrecy surrounding the 1200 arrests has led to human rights lawyers and the media taking the Attorney-General to court to demand the release of the names of all those arrested, the grounds for their detention and their whereabouts.

Last month, Judge Gladys Kessler finally issued the order. In her finding, she reminded the Government that, "secret arrests are a concept odious to a democratic society".

But so far, Ashcroft is still resisting her order, arguing it would give terrorists "a road map" to the Government's investigation. But even prosecutors admit that about 700 of those detained under immigration laws have already been released and many of those had been "cleared of wrongdoing". Others had been charged and deported, but not on terrorism offences.

But at least those detained on US soil have been given access to lawyers, even if at time the access was delayed, and to the US justice system. The 600 men held at Guantanamo Bay in Cuba have been given no rights and there appears little chance the claims against them will be tested soon.

They are the "enemy combatants", many of whom were captured by Northern Alliance forces in the first weeks of fighting in Afghanistan. Some were detained in Pakistan and handed over to the US military.

The two Australian "enemy combatants" at Guantanamo Bay, David Hicks and Mamdouh Habib, have no access to a lawyer or their relatives. Only US and Australian government officials have interviewed them.

The US argues that the detainees include former senior operatives in al-Qaeda and the Taliban forces. The Bush Administration and the Australian Government in the case of Hicks and Habib, are saying in effect, "Trust us; we have got it right." There is no review unless the two men are brought before one of the proposed military tribunals for hearing cases against foreign terrorists.

In the present atmosphere, few US politicians or judges are speaking up for the rights of foreign detainees or immigrants. No politician wants to be seen as soft on terrorism and no judge wants to be accused of freeing a terrorist.

When Judge Kessler came down on the side of human rights lawyers, she acknowledged that the September 11 attacks were testing the US's fidelity to core democratic values and the rule of law. "We will recover from the physical damage inflicted by those attacks," she said. "The psychic damage suffered by the body politic of our country may take far longer to heal."